From here. The entire affidavit can be read in pdf format here.
In April I submitted an affidavit in federal court in South Carolina on behalf of Bishop Mark Lawrence. It was one of several affidavits submitted by the Diocese of South Carolina in response to litigation filed against Bishop Lawrence by parties supporting the position of the Episcopal Church in South Carolina. My affidavit included work on issues relating to TEC polity that I have done over the last three years but had not previously published. This affidavit has been part of the public record for several months. ACI is now posting it online.
My affidavit contains a detailed analysis of the legal structure and history of TEC. The following paragraphs provide an overview of the analysis:
26. In the remainder of my affidavit I will examine the account of TEC’s structure and history presented by Plaintiff’s expert witness, Robert Bruce Mullin. This account is profoundly mistaken and contains numerous errors, misrepresentations and failures to understand relevant legal concepts. But before turning to the detailed analysis it will be useful to present an overview of what that testimony is trying to accomplish.
27. As I will show below, Mullin concedes as he must that TEC’s governing document, its Constitution, contains no explicit language giving any central body hierarchical supremacy over its member dioceses in recognizable legal language. He claims instead that such supremacy was an “assumption” that is only “reflected,” not stated, in the church Constitution. Indeed, he goes so far as to claim that while “explicit language of supremacy was necessary” for other churches, for TEC “language of supremacy in the Constitution was unnecessary and, indeed, inappropriate.”
28. To justify why TEC alone does not need the standard legal language readily found elsewhere Mullin develops an alternative theory of TEC’s structure and legal history that he characterizes at the outset of his testimony as “an extended historical and theological analysis of the development of the Church’s hierarchical structure from its earliest days to the present.”
29. In this section I will consider carefully what Mullin admits about the lack of standard legal language expressing hierarchy. In the next section I will show that his alternative theory cannot withstand scrutiny.
30. Although I challenge in this affidavit Mullin’s interpretations of TEC’s legal history, constitution and canons and 200 years of related documents, it is important to reiterate that Mullin characterizes his testimony as “an extended historical and theological analysis.” When his testimony is understood as he himself describes it, it is clear that the Plaintiff is asking the Court to go far beyond anything the First Amendment permits. Courts cannot sift through 200 years of ecclesiastical history pursuing “assumptions” that were allegedly made in the 1780s and never stated explicitly but were only “reflected” in an ambiguous historical record. Courts cannot constitutionally enter a theological thicket that requires “immersion in doctrinal issues or extensive inquiry into church polity.” Maryland and Va. Churches v. Sharpsburg Church, 396 U.S. 367, 370, n. 4 (1970).
Read it all and follow the link to the affidavit here
[More South Carolina links here]
As it is Sunday morning, this comment will necessarily be brief. Mr. McCall’s affidavit is a true gift to the Church, and his work is a blessing for all of us. I read several sections last night, and there is little doubt that Mr. McCall’s testimony, and that of other witnesses on behalf of Dio of SC and the ACNA dioceses, have refuted much of the testimony by TEC “experts.” The seemingly sudden turnaround in momentum in TEC court cases is no doubt due, in large measure, to the dedication of Mr. McCall and his contemporaries.
I understand that TEC has paid Dr. Mullin something on the order of a million dollars for his testimony in several court cases in the last few years. I suspect that after reading Mr. McCall’s brilliant analysis of the actual facts, TEC will realize Mullin was somewhat overpaid.
Highly recommended reading- familiarize yourself with this before the next time your bishop drops in, or you go to a diocesan meeting.
TJ
There is an interesting exchange over at The Lead (where I do not respond), with Dr Bonner, Tobias Haller, and others.
The problem one sees there is that all Haller is achieving is telling us his view. This does not change the legal facts as these now exist in several venues. Courts read the same documents and do not agree with his opinion. None of this is controversial. That is the situation. The “TEC position†as they hold it to be, has not won the day.
The more obvious tack to take would be to do the work necessary to amend or augment the documentation that exists so that he (Haller et al) can have a clear record for the view of TEC he espouses. This will take time and it will require dioceses to accede to an irrevocable trust, and to do that expressly. That is what the courts will require.
The idea that there is something other than “strict constructionism†when it comes to property is nonsense. This isn’t a question of how red the cover of the BCP is. We are talking about assets. A court must read the documents strictly. They have done so.
If Haller and others want to get the present situation to match the one they read into the historical record and claim is there, and to make that unassailable in court, the hard work will have to be done. Justice Blackmun opined in Jones v Wolf that a church could in fact do this work. Texas and Illinois and others have ruled they have not done that.
I personally don’t think that this work will be easily accomplished. But that it has not been accomplished is patent. This is what the decisions in Texas and Illinois and SC and elsewhere show. So the conflicted recourse to history and present documentation will continue – I suspect no previous generation anticipated the novelties being introduced today and the new polity required to make all constrained by them. To resolve the matter will require work on the constitution and canons, not placing a thumb on the scale of history.
Why don’t the advocates for this new polity do the hard work to put it in place?
er….because they are not concerned with The Truth?
Much thanks to Mark McCall for an invaluable work to show the truth. Thanks be to God!
Dr. Seitz (#2)-
TEC’s leadership is following the same model that the revisionist wing in TEC has followed for 40 years- do what you want to do, create “facts on the ground” (which may be more opinion than fact), then claim that since you got away with it, it must be the way things are intended to be.
The Denis Canon is that fact on the ground. But the national church never followed up on the paperwork. They passed something that, in effect, says that in the opinion of a majority of deputies to a particular convention, “all you base do belong to us.”
So what? No legal documents filed, no one changed the way they conducted business. Well, of course they did not, imagine what the commercial bank that holds the mortgage on the parish property would say and do if you called them up one day to let them know that the bishop’s lien superseded the bank’s. And all those pesky little lawsuits for slipping on the ice, or fenderbenders as people exit the parking lot- in a truly hierarchical church, the bishop and diocese had better be paying the insurance on the whole kit and kaboodle. But TEC bishops did not want to deal with that, or angry rectors of cardinal churches, or those folks whose grandparents paid for the whole place (and who the bishop likes to tap for a few hundred grand now for his pet projects).
The leadership position is that they determine which canons are enforced, and which are “more what you might call guidelines than actual rules.”
I can’t wait for the report to come in when the bishop of NY goes to the vestry of Trinity Wall Street and orders them to sign the trust documents, and place all their assets into the hands of Stacy Sauls, ala the UTO. I betcha they have lawyers and experts who will make DBB and Mullin look reasonably priced. And JP Morgan knew his trust law.
#5, I’m not asking a question for which I have no answer. I am simply trying to point out that Haller et al. prefer to claim something as historical/documentary fact rather than undertake necessary changes. This is a critical point. It would show that the ‘leavers’ in TEC are in fact those who wish to create a new TEC, not those who inhabit the present C/C as intended.
#6, Of course you are correct. My own #5 began as a response to you, but ended up more as a polite rant of my own. I think I am absolutely in agreement with you on the points you make. In any case, I can find no flaw in Mr. McCall’s facts or analysis.
When I was young, TEC was thought of as “the Republican Party at prayer” (although my parents were Democrats in the Adlai Stevenson sense) and nowadays, TEC leadership wants us to believe that since 1776, they have been the Green Party at Prayer. In which they want us to disbelieve history of the last 50+ years we lived through, AND conceive some fantasy in which GC formed the dioceses prior to 1789, when the dioceses formed GC.
It is also quite clear that the Constitution of TEC is based, not on the Constitution of the US, but on the Articles of Confederation of the 13 States, which preceded the Constitution. Their desire to infer that because TEC has a “constitution,” that it inherently grants the officers of TEC the powers of the presidency or judiciary, is absurd.